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Holcombe v. Quest Diagnostics

December 8, 2009

RICHARD W. HOLCOMBE, JR., INDIVIDUALLY AND AS ADMINISTRATOR PLAINTIFF
v.
QUEST DIAGNOSTICS, INC., ET AL. DEFENDANTS/THIRD-PARTY PLAINTIFFS
v.
ABINGTON MEMORIAL HOSPITAL, ET AL., THIRD-PARTY DEFENDANTS



The opinion of the court was delivered by: Anita B. Brody, J.

MEMORANDUM

This memorandum addresses a motion to disqualify the plaintiff's counsel. In the underlying action, Plaintiff Richard Holcombe ("Holcombe") brought this medical professional liability action (the "Holcombe matter") against Defendants Quest Diagnostics Inc. and Quest Diagnostics Clinical Laboratories, Inc. ("Quest Diagnostics"). Holcombe claims that Quest Diagnostics negligently performed pathology testing on a specimen removed from Mary Holcombe, Richard Holcombe's wife, delaying her diagnosis of malignant melanoma and ultimately resulting in her death. Holcombe is represented by the law firm Feldman & Pinto.

Quest Diagnostics brought a Third-Party Complaint against Third-Party Defendants Abington Memorial Hospital ("Abington") and Dr. R. T. Goldhahn, Jr. ("Dr. Goldhahn") for contribution and indemnification alleging that Abington and Dr. Goldhahn conducted the pathology testing. Abington and Dr. Goldhahn are represented by the firm of Weber Gallagher Simpson Stapleton Fires & Newby, LLP ("Weber Gallagher"). During the pendency of this action, Patricia L. Rizzo, Esq. ("Rizzo") moved from Weber Gallagher, where she was originally employed, to Feldman & Pinto. Abington and Dr. Goldhahn seek to disqualify Feldman & Pinto as counsel for Holcombe. On November 5, 2009, I conducted an evidentiary hearing and found that all of the testimony was credible.

I. BACKGROUND*fn1

At the outset of this action, Rizzo was employed at Weber Gallagher. Rizzo began working on the Holcombe matter in March 2009. As part of her responsibilities for the Holcombe matter, Rizzo advised both Abington and Dr. Goldhahn. She engaged in client communication, discussed the merits of the case with potential experts, and acquired privileged and confidential information about her clients and the defense strategy. Rizzo was the Weber Gallagher attorney who spent the most time on the Holcombe matter. From July through October 2009, Rizzo billed 62.3 hours on this case, while other attorneys at Weber Gallagher billed a combined total of 14.9 hours.

In August 2009, Rizzo accepted an offer of employment with Feldman & Pinto. She continued working on the Holcombe matter, however, until September 18, 2009, when she resigned from Weber Gallagher. Although Rizzo told her secretary about her plans to work at Feldman & Pinto, she never informed the management committee or any of her partner supervisors at Weber Gallagher that she accepted a position at Feldman & Pinto. Similarly, while Rizzo sent both Abington and Dr. Goldhahn letters informing them that she was leaving Weber Gallagher, she failed to notify either of those clients that she would be working for Plaintiff's counsel, Feldman & Pinto.

On September 29, 2009, Rizzo started at Feldman & Pinto. One day earlier, on September 28, 2009, Feldman & Pinto held an office-wide meeting that all employees attended. At this meeting, Feldman & Pinto outlined the steps it would take to prevent a conflict of interest and screen Rizzo from the Holcombe matter. Employees were instructed that it was improper to discuss any aspect of the Holcombe matter with Rizzo. Additionally, Feldman & Pinto implemented the following safeguards:

* Electronic files related to the Holcombe matter were password protected; the password is unavailable to Rizzo.

* Paper files related to the Holcombe matter were removed from the general file room and placed in the office of Kathy Megara, a nurse paralegal employed by Feldman & Pinto.

Rizzo confirmed in her testimony at the evidentiary hearing that she has never discussed her involvement in the Holcombe matter with anyone at Feldman & Pinto, except as an adversary while she was employed at Weber Gallagher.

Weber Gallagher was unaware that Rizzo accepted a position at Feldman & Pinto until September 30, 2009. Thereafter, Abington and Dr. Goldhahn, represented by Weber Gallagher, brought this Motion to Disqualify Feldman & Pinto. Abington and Dr. Goldhahn contend that, given the facts of this case, Feldman & Pinto's screening regimen fails to sufficiently protect their interests.

On November 9, 2009, I ordered Abington and Dr. Goldhahn to submit a proposed screening protocol for Feldman & Pinto to adopt in the event that I deny their Motion to Disqualify. Abington and Dr. Goldhahn submitted such a proposal, while continuing to argue that Feldman & Pinto should be disqualified because a screening protocol is insufficient protection. In short, the proposal contemplates:

* The appointment of a Special Master to meet with Feldman & Pinto attorneys and staff and to review their compliance with the protocol on a biweekly basis.

* That the support staff Rizzo works with abstain from working on the Holcombe matter.

* That Feldman & Pinto report any breaches of the screening protocol to the Special Master or the Court.

* That none of the attorneys or staff at Feldman & Pinto discuss the Holcombe matter with Rizzo, and that Rizzo has no access to any files or witnesses related to the Holcombe matter.

On November 20, 2009, Feldman & Pinto submitted a counter-proposal. Other than objecting to biweekly interviews by a Special Master, Feldman & Pinto agreed to Abington and Dr. Goldhahn's restrictions. Further, the counter-proposal added an additional layer of protection: that all paper documents are stored in the West Chester, Pennsylvania office of Christopher Hayes, Esq. ("Hayes"), an associate at Feldman & Pinto who has never met Rizzo. Hayes's computer system is entirely independent from the computer system in the Philadelphia office, where Rizzo works. Hayes would be responsible for emailing documents directly to Laura A. Feldman, Esq. ("Feldman") and J. Bradley McDermott, Esq. ("McDermott"), the two Feldman & Pinto attorneys working on the Holcombe matter. Feldman and McDermott will save the electronic files solely on a USB portable device to which only they would have access.

II. STANDARD FOR A MOTION TO DISQUALIFY

A "district court's power to disqualify an attorney derives from its inherent authority to supervise the professional conduct of attorneys appearing before it." United States v. Miller, 624 F.2d 1198, 1201 (3d Cir. 1980). "Although disqualification ordinarily is the result of a finding that a disciplinary rule prohibits an attorney's appearance in a case, disqualification never is automatic." Id. In deciding whether to disqualify an attorney, a court "should consider the ends that the disciplinary rule is designed to serve and any countervailing ...


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